Divorce litigation in Sarasota, Florida
Choosing the right divorce process makes a huge difference in achieving your goals. Before jumping straight to litigation, think about the total picture in your divorce. Do your goals include outcomes that are not suited for confrontational litigation tactics?
Contested litigation puts 100% of the focus on winning and losing, withing the context of Florida divorce law. The problem is that what constitutes a win, is often determined using someone else’s yardstick. A judge hearing a case at trial, has a very limited set of tools. It’s cookie-cutter.
Alternatives to contested litigation, like Collaborative Divorce, provide creative options. The emphasis is on a peaceful but fair outcome, and your goals and values determine what is a “win” for you and your children.
However, if divorce litigation is the only solution in your case, then this page will give you the basics.
Table of Contents - Divorce
“Divorce litigation is the most destructive way to get a divorce. Why have that be your first choice?”
Divorce Litigation Guide for Sarasota, Florida
You should review this section if you want a detailed review of how a contested divorce case in Sarasota, Florida flows from beginning to end.
You just want you case to be over. However, the divorce litigation process in Florida has a beginning, middle, and end. The only way you can skip right to the end of your divorce case is to reach an agreement with your spouse. There are many methods to reach an agreement before starting the litigation process: “pre-suit” mediation, collaborative divorce, and even a “kitchen table agreement” reached just between you and your spouse. However, if you are unable to reach an agreement, then litigation is usually the next step.
Beginning – Starting a divorce case in Sarasota, Florida.
1. Prepare the Summons, Petition, and other supporting documents to start the case. A Petition is a very formal legal document that tells the court what you want, and why you are entitled to what you want. It is unlikely that a court will give you something that you failed to request in your Petition. So, getting the Petition “right” is extremely important. The Summons, is also a very formal legal document. The Summons tell your spouse that a divorce case has been filed and started, and provides the other party with specific instructions about what to do next.
2. File the case with the Clerk of Court. If you use a credit card, the Sarasota Clerk of Court will charge you $419.73 to file a new case, and issue a summons.
3. Serve your spouse (opposing party) with the Summons, Petition, and other documents that you have filed with the Clerk of Court. You may request that your spouse accept service of the Summons and Petition. In order to do this your spouse will need to file and serve an “Acceptance of Service.” If your spouse will not accept service, you will need to have the sheriff or a process server, serve your spouse. The sheriff or process server then must file a return of service with the court, indicating the time place and manner that your spouse was served.
Key Point: In many instances the first time a person finds out that his or her spouse wants a divorce is when a process server hands then the Summons and Petition. In my opinion, this is needlessly confrontational. Even if litigation is the only option, it usually makes sense to tell your spouse that you want a divorce, and that you would like him or her to accept service from your attorney – rather than have a process server suddenly appear at the doorstep. (Or worse yet at work). The exception to this rule is when there are emergency circumstances, issues of domestic violence, or if you are concerned that your spouse will purposefully evade service.
4. Your spouse is the required to serve you with an “Answer,” to your Petition. If your spouse fails to do so within the time limit, you can take a “Clerk’s Default” against them, and ultimately request that the Court enter a default judgment, and grant your request for a divorce. Sometimes, in addition to filing an Answer to your Petition, your spouse will also file a Counterpetition. A Counterpetition allows your spouse to ask the court to do something that goes beyond the scope of your Petition. For example, maybe your spouse wants to change her name or request alimony. If your spouse serves you with a Counterpetition, you will need to file an Answer to the Counterpetition.
5. Exchange “Mandatory Disclosure,” which consists of a Financial Affidavit and Certificate of Compliance. The Financial Affidavit lists your income, expenses, assets and debts. The Certificate of Compliance is a list of documents that you are required to exchange with your spouse. Examples of the type of documents required by the Certificate of Compliance are tax returns, pay stubs, and bank statements. Mandatory Disclosure is required to be exchanged with 40 days after the Summons and Petition have been served.
Key Point: The 40 day deadline to exchange mandatory disclosure is not something the Court will enforce on its own. If your spouse will not provide the required mandatory disclosure, you will need to bring a Motion to Compel, and schedule a hearing on your Motion.
6. Request mediation. Most judges in Sarasota divorce cases, require mediation before a case may be scheduled for trial. Mediation is also required before you may request a temporary hearing. (Absent an emergency). In most cases, meditation cannot occur until after the parties have exchanged Financial Affidavits.
Mediation can either be through a private mediator, or through the Family Mediation Program. The Family Mediation Program is “means tested,” so you and your spouse will need to meet the income requirements in order to be eligible to use this program. To schedule mediation through the Family Mediation Program, you will need to get an “Order of Referral” from the judge assigned to your case. You will also need to schedule the specific time of the mediation, and serve the other party with a Notice of Mediation.
7. Extended meeting before mediation. It surprises me how many folks show up to mediation unprepared. I believe it is important to have an extended meeting with a client before mediation. This meeting should have three objectives. First, the mediation process should be described in detail. For example, a private mediation on all issues in a divorce case can take eight hours or more. You should be aware of this time range in advance, so that you can plan your schedule accordingly. Second, specific proposals should be prepared and discussed at the meeting. For example, prior to mediation, you should have a proposed division of assets and debts prepared, and ready for discussion. Third, you should discuss your absolute bottom line. Taking a case to trial can be a crap shoot, but there is usually a range of litigation costs, and possible outcomes that you can estimate. (In other words, your best and worst days in court). Armed with this knowledge, you can make informed decisions about “when to hold them, and when to fold them” during the mediation process.
8. Attend mediation and attempt to settle your case. Some cases settle on the courthouse steps the day of trial. However, by that time, almost all the trial costs have been incurred. So, mediation is usually the last, best, chance to settle a case on a reasonably affordable basis.
9. Settlement is reached. If you settle your case at mediation, or any time prior to trial, you will need to prepare and sign a Marital Settlement Agreement. There are formal requirements for singing a Martial Settlement Agreement, especially if the Agreement requires the transfer of real property. After a Marital Settlement Agreement is signed by both parties and filed with the Court, you may schedule an uncontested final hearing. This hearing will be very brief. At the hearing you will be requesting that the judge approve your Marital Settlement Agreement, and grant your divorce. The judge will then enter a Final Judgment of Dissolution of Marriage. Unless your case is very simple, the judge will expect you to have prepared the Final Judgment to be signed.
Middle – The Divorce Case After Mediation
10. Discovery and experts. If you case fails to settle at mediation, the next step is to consider conducting additional “discovery,” and hiring experts. Additional discovery could consist of Interrogatories, Requests for Production, Requests for Admissions, and Depositions. Experts are often employed to report on custody issues concerning the children, determine the income earning capacity of a party, and to value assets like the martial home. This type of discovery and the hiring of experts can be very expensive.
11. “Notice” the case for trial. Even if mediation is not successful, the court will not schedule your case for trial on its own. In order to request trail, you file a document with the court letting the court now that the case is ready for trial.
12. Attend scheduling conference with the judge to determine the date of trial. The court will then enter a trial order, that sets the date of the trial. This order also sets other deadlines like the cut off time for taking depositions, and the deadline for exchanging witness lists.
13. Prepare exhibits for trial. Often the parties stipulate to the exhibits that will be entered at trial. However, if there is no stipulation, each exhibit that you want to show the judge, needs to be allowed under Florida’s evidence code. For example a bank statement is a business record of the bank that produced the statement. To enter this document at trial, you will need a records custodian from the bank to “authenticate” that the bank statement is what you are claiming it is.
14. Subpoena witnesses. If you plan on calling witnesses at your trial, you may wish to serve them with as subpoenas requiring him or her to appear.
End – Taking the Divorce Case to Trial
15. Attend the trial. At trial, the party who started the case goes first, and calls all of his or her witness. The other party is allowed to cross examine each witness after that witness testifies. Then the responding party is allowed to call witnesses, and the party that started the case is allowed to cross examine. Some judge’s will write their own Final Judgments after the trial is over. However, many judges will request that one, or both attorneys prepare a proposed Final Judgment for the judge to review.
16. Prepare additional documents. After the trial is over the final judgement is often prepared by the attorneys. Also, additional documents like Qualified Domestic Relations Orders, to divide retirement accounts may need to be prepared.
17. Final Judgement. The final step is for the court to sign the final judgment, which is official when filed with the clerk. (Unless there are post judgement motions or appeals).
Ruling the court can make in your Sarasota divorce
Under Florida divorce law, the court has very specific powers. Depending on the facts of your case, the court can:
1. Change your legal status from married to single.
2. Characterize assets and debts as either marital or nonmarital (separate).
3. Award specific items of marital assets and debts to you or your spouse.
4. Order the sale of real property, including the marital home. (Requires a “partition count” to be added to your Petition).
5. Award you or your spouse “exclusive use and possession” marital home. (You and your former spouse would continue to own the property jointly, but only one of you would be allowed to stay in the home).
6. Award alimony.
5. Enter a child custody order. (In Florida, a custody order is called a “Parenting Plan”).
6. Order child support.
7. Require one spouse to pay the other spouse’s attorney’s fees.
8. Restore a party’s previous last name. (Maiden name).